2nd honker
Dec. 14, 2016
News Picks from NYSDA Staff
News Picks
Getting the Expert Funds You Need Under County Law § 722-c. The latest issue of the Public Defense Backup Center REPORT features an article on preparing County Law § 722-c applications , written by NYSDA Staff Attorneys Stephanie Batcheller, Ziadanne Lewis, and Mardi Crawford. The article goes through each element of a 722-c application, including the types of cases covered by 722-c and the application process, and offers caselaw on the use and engagement of a variety of experts and a quick reference list of state and national standards on defense access and funding for experts.
The Aug.-Dec. 2016 issue also offers news about forensics, new legislation and regulations, and recent training programs, as well as case summaries from the U.S. Supreme Court, Court of Appeals, and the four Appellate Divisions. The issue will be mailed to members soon.

Legal Action Center Issues Medication-Assisted Treatment Toolkit. A toolkit to help people fighting for medication-assisted treatment (MAT) for addiction is the latest material published by the Legal Action Center (LAC) on MAT. Clients of many public defense attorneys in the criminal justice and child welfare systems face MAT challenges. Last July, Legal Director Sally Friedman and Equal Justice Works Fellow Melissa Trent from LAC presented a CLE session on "Defense Attorneys & the Opioid Epidemic: Asserting Your Clients' Right to Addiction Medication" at NYSDA's annual conference. The new toolkit, which includes sample letters to courts and probation advocating for continuation of MAT and an "Attorney's Guide" on "Addiction Medication and Your Client," is a welcome addition to the materials made available at the CLE. The Office of Alcoholism and Substance Abuse Services website offers a variety of resources on substance use disorder treatment, including the Treatment Availability Dashboard , Treatment Provider Directory , Methadone/Buprenorphine Providers , and descriptions of the types of treatment services that are available.

New Law Sets Deadlines for Sexual Offense Kit Testing. On Nov. 28, 2016, Gov. Cuomo signed legislation creating Executive Law 838-a, which gives law enforcement agencies only 10 days to submit to an appropriate laboratory any sexual offense evidence kit they receive. The bill, S8117/A10067-A (L 2016, ch 500), also sets time limits for forensic labs to report results, imposes administrative reporting requirements, and addresses a backlog of previously-collected kits that have not been tested. USA Today reported that the governor and the bill's sponsors agreed to alter the timeline for old kits set out in the bill, "in part because labs were unequipped to handle an expected influx."
News accounts do not address what if any effect erasing the backlog may have on public defense caseloads or work. Nor are the costs of testing, which contributed to the backlog, clear. State Senator Kemp Hannon, one of the bill's sponsors, told the New York Law Journal  that $500,000 had been directed to agencies for compliance, and that additional funding would be considered if needed. The Austin (TX) Chronicle  reported  in September that cost estimates for dealing with that city's rape kit backlog ranged from $433,800 to $5.6 million. Kits from cases opened in 2012 had been tested under a grant from the New York County District Attorney's Office, the report said.
Should DNA testing of the New York backlog and subsequent comparison with DNA databanks yield arrests, defense lawyers will face the usual many challenges DNA evidence presents. Just because a lab report says a client's DNA matches evidence from a complainant doesn't mean that is true. See for example the Dec. 7, 2016 ABA Journal news item on a Colorado man's lawsuit over a DNA mistake. Or see Bloomberg.com's article, How DNA Evidence Went from Airtight to Error-Prone .
And new DNA challenges always loom. Law enforcement in Ohio recently turned to "familial" DNA comparison to help identify a suspect. This practice, which involves seeking to match Y chromosomes to create "a list of potential fathers, brothers or sons of a criminal suspect," may be growing in the US. According to Cleveland.com , with the recent arrest, "Ohio joins California, Colorado, Texas, Virginia, Arkansas, Florida, Michigan, Utah, Wisconsin and Wyoming in using familial DNA for criminal investigations ...." The Daily News said on December 8  that the Queens District Attorney, among others, is calling for its use in New York. ABC News picked up the story on December 9.

Annulment of ALJ Decision Denying Amendment and Sealing of Indicated Child Abuse Report Affirmed. The First Department recently affirmed a supreme court order that annulled an administrative law judge's decision denying a mother's application to change an indicated child abuse report to unfounded. Matter of Natasha W. v New York State Off. of Children & Family Servs. , 2016 NY Slip Op 08099 (1st Dept 12/1/2016). The petitioner mother was caught shoplifting with her child and later pleaded guilty to disorderly conduct and the record was sealed. The New York City Administration for Children's Services investigated a report of child maltreatment that was made to the Statewide Central Register of Child Abuse and Maltreatment (SCR) based on this incident and "concluded that 'there is no child[] likely to be in immediate or impending danger of serious harm" and declined to file a neglect proceeding against the mother. Nevertheless, the report was closed as indicated. The Office of Children and Family Services (OCFS) denied the mother's request to change the report to unfounded and the administrative law judge (ALJ) denied the mother's administrative appeal.
The mother challenged the ALJ's decision under CPLR article 78 and the supreme court granted the petition to the extent of annulling the ALJ's report and determination and remanding for further proceedings. The First Department affirmed, agreeing with the supreme court that:
1) the ALJ made errors of law because the undisputed facts do not, as a matter of law, show that the petitioner put the child in "imminent danger," which is the requisite standard for a finding of maltreatment; and 2) the ALJ erred by failing to consider the 10 Guideline factors for determining whether the acts giving rise to the report were relevant and reasonably related to employment in childcare, provision of foster care, or adoption [that are set forth in the OCFS publication, "Guidelines for Determining Whether Indicated Instances of Child Abuse and Maltreatment are Reasonably Related to Employment or Licensure"].
The appellate court noted that "[w]hat is at issue here is solely whether [the mother's] name should be maintained on a list which would make it difficult for her to obtain a job in childcare, which is her chosen profession." The First Department decision offers a helpful review of the appropriate standard for SCR administrative review and fair hearings, a "fair preponderance of the evidence," with citations to Matter of Lee TT v Dowling (87 NY2d 699 [1996]), Valmonte v Bane (18 F3d 992 [2nd Cir 1994]), and Social Services Law 422(8).

Association News
NYSDA Executive Director Announces Retirement, Search for New ED Underway . NYSDA's longtime Executive Director, Jonathan E. Gradess, has announced that he will be retiring in August 2017. In November, NYSDA began a national search for the Association's next Executive Director. More information about the position and how to apply is available at www.nysda.org/page/EDSearch

As noted in the current edition of the Public Defense Backup Center REPORT discussed above, Gradess has received several awards recently, including the National Legal Aid and Defender Association's Reginald Heber Smith Award. Also honored recently was Gary Horton, Director of NYSDA's Veterans Defense Program, who received the National Alliance for Mental Illness-NYS's first-ever Criminal Justice Award in November.

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